Clearing the Underbrush for Real-Life Contracting

Abstract

In his famous book, The Death of Contmct, Grant Gilmore dubbed Stewart Macaulay the "Lord High Executioner of the Contract is Dead school" (Gilmore 1974, 3, n.1; Braucher 1995, 52). Gilmore's book portrayed the development and asserted disintegration of classical contract doctrine as an epic battle between contract titans, with Samuel Williston advancing the classical, relatively "objectivist" approach and Arthur Corbin retorting with something far more nuanced, fact-sensitive, and "real." Gilmore declared "dead" the objectivist approach and, with it, the distinctive character of contract law that made it different from the law of torts from which it emerged in the nineteenth century. Macaulay won his dubious cameo role' in Gilmore's little drama because his path-breaking research had examined how contract law actually operated and his findings had prompted hard questions about the flimsy connection between that "law" and the "law" that lawyers and law students learn about when they study in law school.